WB govt likely to move appeal against Calcutta HC allowing BJP Rath Yatra

Sources said the TMC-led state government was likely to move the court of Chief Justice Debasish Kar Gupta on Friday morning against the decision of the single bench of Justice Tapabrata Chakraborty allowing the BJP to take out the Rath Yatra in the state.

Earlier during the day, while delivering the judgement, the bench of Justice Tapabrata Chakraborty had asked the saffron party to inform the superintendents of police of the districts which the rallies will enter at least 12 hours ahead of schedule.

The party was also directed to ensure that the 'Yatras' are conducted by abiding the law and not impede normal movement of vehicular traffic.

Justice Chakraborty said the petitioner BJP will be vicariously responsible for any damage or loss of public property.

The court also directed that the police shall deploy adequate force to ensure that there is no breach of law and order.

Welcoming the order, BJP state president Dilip Ghosh said a new schedule for holding the three rath yatras from different parts of the state will be prepared.

"I can assure there will be no breach of law and order from our part," Ghosh said.

The party had planned three Rath yatras from different parts of the state and will travel across the state's 42 parliamentary constituencies.

On December 6, a single judge bench of the HC had refused to give permission to the BJP to hold the Rath yatra, which was scheduled to be flagged off by BJP national president Amit Shah from Cooch Behar in North Bengal on December 7. The party had then approached the division bench.

The division bench had on December 7 asked the West Bengal chief secretary, the home secretary and the director general of police to hold a meeting with three representatives of the BJP and take a decision on the yatra by December 14.

After parleys with the BJP team, the three officers had refused permission for the Rath yatra on December 15 on the grounds that it might lead to communal tension.

The state BJP had moved the court again challenging the state government's denial of permission to its programme.

Setting aside the denial of permission on Thursday,

Justice Chakraborty observed that the officials concerned did not have sufficient material to totally deny permission to the petitioner to organise the rallies without even making an endeavour as to whether the yatras can be allowed by imposing reasonable restrictions.

The court observed that discretion exercised by the administrative authorities can certainly be interfered with by the court, specially when such powers have been exercised in a whimsical manner.

Advocate General Kishore Dutta had submitted before the court that it has limited scope of judicial review in an administrative decision to not allow the yatra on the basis of intelligence inputs and apprehensions of communal tension.

Dutta had on Wednesday submitted a report in a sealed cover to the court apparently detailing the intelligence inputs of likely communal unrest if the yatra was allowed.

Justice Chakraborty said as the yatras are not for any unlawful purpose, they ought not to be totally prohibited unless there is imminent threat of breach of peace and even then, the restraint should be just and reasonable.

Observing that the petitioner has been mechanically denied permission to organise the yatra, the court said reliance has been placed on intelligence reports by the administration for such denial, but names of the districts have not been disclosed.

The court also noted that the BJP had written several letters to different administrative and police officers from October 29 for consultations for the Rath yatra, but none were responded to.

According to the original schedule submitted by the BJP, party national president Amit Shah was to kickstart the campaign called 'Save Democracy Rally' from Cooch Behar district on December 7, from Kakdwip in South 24 Parganas on December 9 and from Tarapith temple in Birbhum on December 14.

Justice Chakraborty, who presided over the earlier single bench that injuncted the yatras on December 6, said the sole ground of the earlier judgement was that the rally was to start from 10 am the next morning.

Praying for setting aside of the denial of permission by the three officers, BJP counsel S K Kapur submitted on Thursday that the decision communicated was at the behest of the state government.

Kapur submitted that it did not reflect any independent application of mind by the court-appointed members and as such not sustainable and prayed that the yatra be allowed by the court.

Holding rallies is part of political activities of a political party and a decision to restrict or prohibit must be based on cogent reasons, he said, adding the state government wants to stop the yatra on mere surmise.

Appearing for the state, Advocate General Kishore Dutta submitted that rights under Article 19 of the Constitution are not absolute and are subject to public order, meaning that the sovereign can restrict or prohibit a rally.

He said the apprehension was that the yatra will turn into communal propaganda.